BEFORE THEY TUMBLED DOWN THE ORWELLIAN MEMORY HOLE, the Principles of ’98 enjoyed a long and distinguished life in American history. Media spokesmen today, who as usual know none of the pertinent history, have tried to associate nullification with disreputable causes. Our public servants in Washington are only too glad to see this false version of our history peddled to American audiences, since it casts in a perverse light anyone who might wish to employ these great Jeffersonian principles today—if they were thought up and used by slaveholders for wicked purposes, what kind of extremist would want to bring them back? This chapter seeks to recover some of our lost history, both for its own sake and to detoxify the idea of nullification, an unjustly maligned Jeffersonian remedy.
We saw in chapter 2 that the Principles of ’98 had nothing to do with slavery, and that the key proponents of the states’ rights, strict-constructionist view of the Constitution were not known for sympathy to slavery. The evidence in this chapter amplifies that argument many times over. References to the Principles of ’98 over the six ensuing decades can be found all over the United States. “During conflicts between state and national authority,” writes a historian of the Virginia and Kentucky Resolutions, “reports and resolutions adopted by state legislatures, messages from state chief executives, opinions of state appellate courts, and speeches of leading citizens all ring with the words of the Kentucky and Virginia Resolutions.”1 In Virginia in particular, the Resolutions were especially influential, forming the basis of legal education at the University of Virginia and the College of William and Mary until well after the Civil War.2 And as we shall see, it was the northern states, and not the southern, that had more frequent recourse to these Jeffersonian principles.
It was New England, for example, that cited the Principles of ’98 most insistently in the decades that followed the Virginia and Kentucky Resolutions. As the Napoleonic Wars raged in Europe in the early years of the nineteenth century, the rights of neutrals like the United States on the seas were increasingly disregarded, as both the British and French searched American ships for goods intended for the other side and seized any such cargoes. The British, furthermore, claimed the right to impress back into service any former members of the British navy they might find on board American merchant ships. In some cases, American citizens were seized. Jefferson, who sought to vindicate American rights, was sure that military action would be foolish, even suicidal. He chose economic warfare instead: in December 1807 he instituted an embargo that prevented American merchant ships from traveling to any foreign port anywhere in the world. The policy wound up having no effect on the behavior of Britain and France, but created great hardship and intense political opposition at home.
Jefferson’s embargo devastated New England’s maritime economy. New Englanders could take out insurance against seizure of their cargoes by Britain or France, but the complete cessation of international trade at the hands of Jefferson transformed their situation from challenging to impossible. The enforcement of the embargo was also a source of complaint: sweeping search powers, along with the authority to seize ships or even goods wherever they were to be found throughout the country on mere suspicion of intent to export, struck New Englanders as obnoxious and unconstitutional. Although protests were initially muted because the northern ports were frozen and commercial traffic was at a natural standstill, within months Jefferson faced the most intense opposition he had encountered in his two terms as president. We get a flavor of that opposition from the letters the third president received. The nicer ones condemned him as incompetent or a scoundrel. The nastier ones threatened him with assassination. One merchant urged him to “take off the embargo[,] return to Carter’s Mountain and be ashamed of yourself, and never show your head in publick Company again.”3 Another correspondent said the President had set “aside and trampled on our most dearest rights bought by the blood of our ancesters [sic]…. You can not be considered any thing but a curse to this Nation and the whole wrath and indignation of an injured people is pointed at you!”4 One especially desperate fellow wrote:
PRESIDENT JEFFERSON
I have agreed to pay four of my friends $400 to shoat you if you dont take off the embargo by the 10th of Oct 1808 which I shall pay them, if I have to work on my hands & nees for it. Here I am in Boston in a starving Condition. I have by working at jurney wurk got me a small house but what shall I git to eat? I cant eat my house & it is the same with all the Coopers. I cant git no work by working about on the warves for you have destroy’d all our Commerce & all the ships lie rotting in our harbours & if you dont take off the embargo before the 10 of Oct. you will be shott before the 1st of Jany 1809. You are one of the greatest tyrants in the whole world. You are wurs than Bonaparte a grate deel. I wish you could feal as bad as I feal with 6 Children round you crying for vittles & be half starved yours[elf &] then you would no how good it felt.5
Given the American colonists’ history of evading British taxation and regulation of their trade, we can hardly be surprised that a new wave of American smuggling greeted Jefferson’s policy. Goods were often transported to Canada and shipped from there instead. But it wasn’t just private individuals who resisted; it was also state governments. When a federal collector at Oswego requested help in enforcing the embargo, for instance, New York’s governor refused. For their part, the state courts of Rhode Island took action to prevent the detention of vessels.6
State opposition to the embargo on the grounds of its lack of constitutional sanction was also declared by means of formal protests. In January 1809, the Massachusetts legislature condemned the embargo as “in many respects, unjust, oppressive and unconstitutional, and not legally binding on the citizens of this state.” It promised to protect the people against it: “It would be derogatory to the honour of the commonwealth to presume that it is unable to protect its subjects against all violations of their rights, by peaceable and legal remedies. While this state maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the state government.” It urged its people only to “abstain from forcible resistance” until all peaceful remedies “shall have been exhausted in vain.”7
The following month, Governor Jonathan Trumbull of Connecticut spoke openly of state interposition: “Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task—it is their right—it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”8 The response of the Connecticut legislature, which supported the governor with vigor, deserves to be quoted at length:
Resolved, That to preserve the Union, and support the constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the Embargo.
Resolved, That this Assembly highly approve of the conduct of his Excellency the Governor, in declining to designate persons to carry into effect, by the aid of military power, the act of the United States, enforcing the Embargo, and that his letter addressed to the Secretary for the Department of War, containing his refusal to make such designation, be recorded in the public records of this State, as an example to persons, who may hold places of distinguished trust, in this free and independent republic.
Resolved, That the persons holding executive offices under this State, are restrained by the duties which they owe this State, from affording any official aid or co-operation in the execution of the act aforesaid.9
The following month the legislature of Rhode Island followed suit. It began by noting that “the dissolution of the Union may be more surely, and as speedily affected by the systematick oppression of the government, as by the inconsiderate disobedience of the people.” It then stated, as a matter of common sense, that “the people of this State” were “one of the parties to the Federal compact.” It was, therefore, “the duty of this General Assembly as the organ of their sentiments and the depository of their authority, to interpose for the purpose of protecting them from the ruinous inflictions of usurped and unconstitutional power.” Rhode Island’s resolutions read, in part:
Resolved, That the several acts of the Congress of the United States laying an embargo, by the permanent interdiction of foreign commerce, and by the numerous and vexatious restrictions upon the coasting trade, do, in the opinion of this General Assembly, infringe upon the undeniable rights and privileges of the good people of this State.
Resolved, That the act of Congress of the 9th of January last, enforcing the several embargo acts, is in many of its provisions unjust, oppressive, tyrannical and unconstitutional. Resolved, That to preserve the Union and to support the constitution of the United States, it becomes the duty of this General Assembly, while it is cautious not to infringe upon the constitution and delegated powers and rights of the General Government, to be vigilant in guarding from usurpation and violation, those powers and rights which the good people of this State have expressly reserved to themselves, and have ever refused to delegate.10
At the same time that they set forth such a confrontational position, these states by and large insisted on their fidelity to the Union, a fidelity that required them to resist unconstitutional federal acts rather than acquiesce in them. They likewise urged their representatives and senators to work against the embargo and its oppressive and unconstitutional enforcement, and perhaps even to amend the Constitution to make the matter as clear as possible. But as they urged these peaceful remedies, they also insisted that the law in question was unconstitutional and void, and not legally binding.
Conflict between New England and the federal government persisted into the War of 1812. The New England states objected that the president could call upon the militias of the several states only for the constitutional purposes of “execut[ing] the laws of the Union, suppress[ing] insurrections and repel[ling] invasions.” To leave entirely within the hands of the president the determination of whether one of these exigencies actually held would, according to New England’s argument, efface the just rights of the governors over their own militias. Called upon to decide the question, several Massachusetts judges concluded that such a power of determination was indeed reserved to the states. No power was given to the president or Congress to decide whether “the said exigencies do in fact exist. As this power is not delegated to the United States by the Federal Constitution, nor prohibited by it to the states, it is reserved to the states, respectively; and from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia [i.e., the state governors].”11
The Massachusetts legislature was not alone. The Connecticut legislature declared that “the conduct of his excellency the governor in refusing to order the militia of this State into the service of the United States on the requisition of the Secretary of War meets with the entire approbation of this Assembly.”12 U.S. Senator Timothy Pickering of Massachusetts expressly employed the language of the Principles of ’98: “How are the powers reserved to the States respectively, or to the people, to be maintained, but by the respective States judging for themselves, and putting their negative on the usurpations of the general government?”13
As the war proceeded and a still more stringent embargo than that of Jefferson was imposed, the embargo controversy reemerged. State dissent once again adopted the language and concepts of the Principles of ’98. The Massachusetts legislature condemned the embargo as unconstitutional and reaffirmed that state’s right to protect its people against unconstitutional federal laws:
A power to regulate Commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the States, was reserved to protect the Citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this state are oppressed by cruel and unauthorized laws, this legislature is bound to interpose its power, and wrest from the oppressor his victim.14
As if the appeal to the Principles of ’98 were not clear enough in the passage just quoted, the Massachusetts legislature went on to make express reference to Madison, who was now the President: “This is the spirit of our Union, and thus has it been explained by the very man, who now sets at defiance all the principles of his early political life.” It then listed its grievances, noting that the laws that oppressed them were “unconstitutional and void”:
Resolved, That “the act laying an embargo on all Ships and vessels in the Ports and harbors of the United States,” passed by the Congress of the United States on the 16th day of December, 1813, contains provisions not warranted by the Constitution of the United States, and violating the rights of the People of this Commonwealth.
Resolved, That the Inhabitants of the State of Massachusetts, have enjoyed, from its earliest settlement, the right of navigating from Port to Port within its limits and of fishing on its coasts; that the free exercise and enjoyment of these Rights are essential to the comfort and subsistence of a numerous class of its citizens; that the power of prohibiting to its Citizens the exercise of these rights was never delegated to the general government, and that all Laws passed by that Government, intended to have such an effect, are therefore unconstitutional and void.
Resolved, That the people of this commonwealth, “have a right to be secure from all unreasonable searches and seizures of their Persons, Houses, Papers, and all their Possessions;” that all Laws rendering liable to seizure the property of a Citizen at the discretion of an Individual, without warrant from a Magistrate, issued on a complaint, supported on oath or affirmation, under the pretence that such property is “apparently on its way towards the territory of a foreign nation or the vicinity thereof,” are arbitrary in their nature, tyrannical in their exercise, and subversive of the first principles of civil liberty.15
From a political point of view, the War of 1812 wound up essentially a draw, and the Treaty of Ghent signed in December 1814 reestablished the status quo ante bellum. From a military point of view, it was a British rout. As a result, Congress seriously entertained the prospect of military conscription. The constitutional objections, in turn, were not long in coming.16 The legislature of Connecticut, for instance, described the ensuing bill as “not only intolerably burdensome and oppressive, but utterly subversive of the rights and liberties of the people of this State, and the freedom, sovereignty, and independence of the same, and inconsistent with the principles of the constitution of the United States.” Were the bill passed, said the legislature, “it will become the imperious duty of the Legislature of this State to exert themselves to ward off a blow so fatal to the liberties of a free people.”17 The bill never did pass, but the very possibility that it could pass prompted the legislature to issue the following resolution: “That in case the plan and bill aforesaid, or any other bill on that subject, containing the principles aforesaid, shall be adopted, and assume the form of an act of Congress, the Governor of this state is hereby requested forthwith to convoke the General Assembly; and, to avoid delay, he is hereby authorized and requested to issue his proclamation, requiring the attendance of the members thereof at such time and place as he may appoint, to the end that opportunity may be given to consider what measures may be adopted to secure and preserve the rights and liberties of the people of this state, and the freedom, sovereignty and independence of the same.”18
Daniel Webster likewise opposed the measure, and urged a similar remedy. Webster, who would later represent Massachusetts in both the House of Representatives and the Senate, and who was then serving as a U.S. congressman from New Hampshire, delivered in December 1814 one of the most effective speeches of a political career known for elegant oratory. Military conscription, he thundered, was incompatible with both the Constitution and the principles of a free society. It was, as twentieth-century conservatives like Russell Kirk would later argue, a case of government run completely amok, treating the citizens as if their very lives could be disposed of by politicians. “Where is it written in the Constitution,” he demanded to know, “in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it?”19
Now if there is one thing Daniel Webster is remembered for in his speaking career, it is his devotion to and defense of a strong and indivisible American Union. His famous exchanges in the U.S. Senate with Robert Hayne and John C. Calhoun, in which he defended a nationalist theory of the Union that consigned the states to a distinctly subordinate position, are among his best-known speeches. (Contrary to popular legend, Webster was in fact the clear loser in the famed Webster-Hayne debate, whether from the point of view of public opinion, the press, or the Senate.)20 Yet what did Webster think should be done if the conscription bill should pass? In that case, he said, it would be
the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist; and their highest obligations bind them to the preservation of their own rights and the liberties of their people. I express these sentiments here…because I shall express them to my constituents. Both they and myself live under a constitution which teaches us that “the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind” (New Hampshire Bill of Rights). With the same earnestness with which I now exhort you to forbear from these measures, I shall exhort them to exercise their unquestionable right of providing for the security of their own liberties.21
Thus even Daniel Webster, the great nationalist, called for interposition, the central theme of the Resolutions of ’98.
Although the conscription bill did not pass, the federal government did enact a bill for the enlistment of minors. The legislature of Connecticut promptly passed An Act to Secure the Rights of Parents, Masters, and Guardians, which described the federal government’s measure as “repugnant to the spirit of the constitution of the United States, and an unauthorized interference with the laws and rights of this State.” The bill required judges to release on habeas corpus any minors enlisted without the consent of their parents. Anyone trying to remove a minor from the state for this purpose was subject to fine and imprisonment. Massachusetts followed suit.22
We encounter favorable references to the Principles of ’98 in still other northern states. Thus in 1820, in the midst of a confrontation with the Second Bank of the United States, the Ohio legislature declared: “Resolved by the General Assembly of the State of Ohio, That in respect to the powers of the governments of the several states which compose the American Union, and the powers of the Federal Government, this General Assembly do recognize and approve the doctrines asserted by the Legislatures of Virginia and Kentucky, in their resolutions of November and December, 1798, and January 1800—and do consider that their principles have been recognized and adopted by a majority of the American people.” Immediately preceding the Ohio legislature’s resolutions was appended a report that described the election of Thomas Jefferson in 1800 as a referendum on the Federalists, who had imposed the Alien and Sedition Acts on the country, and an indication of popular support for the Principles of ’98:
The States and the People recognized and affirmed the Doctrines of Kentucky and Virginia, by effecting a total change in the administration of the Federal Government [i.e., by replacing the Federalists with the Republicans]. In the pardon of Calender [sic], convicted under the Sedition Law, and in the remittance of his fine, the new Administration unequivocally recognized the decision and the authority of the States and of the people. Thus has the question whether the Federal Courts are the sole expositors of the Constitution of the United States, in the last resort or whether the States, “as in all other cases of compact among parties having no common judge,” have an EQUAL RIGHT to interpret that Constitution FOR THEMSELVES, where their sovereign rights are involved, been decided against the PRETENSION OF THE FEDERAL JUDGES, by the people themselves, the true source of legitimate power.23
Nine years earlier, the legislature of Pennsylvania had approved a resolution whose indebtedness to the Principles of ’98 should be obvious:
The people of the United States by the adoption of the federal constitution established a general government for special purposes, reserving to themselves respectively, the rights and authorities not delegated in that instrument. To the compact thereby created, each state acceded in its character as a state, and is a party. The act of union thus entered into being to all intents and purposes a treaty between sovereign states, the general government by this treaty was not constituted the exclusive or final judge of the powers it was to exercise; for if it were so to judge then its judgment and not the constitution would be the measure of its authority.24
In 1826, the legislature of Virginia expressly renewed its support for the Virginia Resolutions of 1798 and Madison’s Report of 1800, in light of the federal government’s commitment to federally funded internal improvements without a constitutional amendment authorizing them. It also imposed a series of tariffs for the protection of domestic manufacturing that would benefit one section of the country at the expense of another. The principles asserted in those immortal documents, the legislature declared, “apply with full force against the powers assumed by Congress” in its own day.25 The legislature renewed this protest the following year.
The confrontation between the federal government and South Carolina in 1832–1833 is typically the only time the standard version of American history makes reference to the Principles of ’98 in the years following the Virginia and Kentucky Resolutions. We need not spend much time on historical background, since the story is a relatively familiar one compared to the other episodes we have covered thus far. The controversy stemmed from the federal government’s protective tariff policy, culminating in the “Tariff of Abominations” of 1828. Many southerners believed the South suffered most of the losses from this policy, and the North reaped most of the gains. Southerners relied on sales in the world market for much of their produce, so protective tariffs in the United States could not help them. Meanwhile, the tariffs forced them to pay more for manufactured goods, and by discouraging Americans from buying foreign products, the tariffs deprived foreigners of the wherewithal with which to purchase southern exports and could lead to destructive economic retaliation.
Numerous southern legislatures condemned the protective tariff throughout the 1820s. As the legislature of North Carolina explained in its own solemn protest in 1828, “Manufactures, in the United States, are not an object of general interest but of local interest; and yet they have received from the Government, not only a moderate and just encouragement, under the operation of a tariff of duties on imports, for purposes of revenue, but a protection by an enormous duty upon importations; which palsies every effort of the agriculturist, withers the product of his industry, and greatly impairs foreign commerce.”26 South Carolina’s Thomas Cooper described the tariff as “a system, whose effect will be to sacrifice the south to the north, by converting us into colonies and tributaries—to tax us for their own emolument—to claim the right of disposing of our honest earnings—to forbid us to buy from our most valuable customers—to irritate into retaliation our foreign purchasers, and thus confine our raw material to the home market—in short to impoverish the planter, and to stretch the purse of the manufacturer.”27
The South’s constitutional argument against the protective tariff was twofold. First, the Constitution envisioned the levying of tariffs for the purpose of raising revenue to meet government expenses, not for the purpose of granting protected status to domestic industry at the expense of consumers. Second, the Constitution called for government activity to be carried out with an eye to the general welfare, not the particular welfare of one section. The protective tariff, it seemed clear, involved the enrichment of northern industry at the expense of southern agriculture, and thus violated the general welfare clause. The South, said sometime senator and Jackson Administration vice president John C. Calhoun, was perfectly content to allow the North the incidental protection that even a revenue tariff would afford, but anything beyond this imposed a heavy and unfair burden on the South.
Perhaps in order to deflect attention from the merits of Calhoun’s arguments on nullification, proponents of centralized government have sought to demonize the man himself, noting with gleeful satisfaction his support for the institution of slavery. We are to understand that a supporter of slavery cannot have anything of value to say, and that anything he does say is probably tainted by a desire to protect and expand slavery. But while Calhoun indeed did support slavery, so did Andrew Jackson, the slaveholding southern president who opposed both nullification and Calhoun himself.28 Such critics are apparently unaware that northern abolitionists were known to refer to Calhoun’s principles themselves, even citing him by name, in support of their own struggles against the fugitive slave laws.29 Someone evidently forgot to tell them that they were not allowed to read or cite the wicked Calhoun, or that these ideas were all about protecting slavery. In this book, we leave aside the bigoted and childish nonsense that views everything southern as disreputable and dishonest, and adopt instead the forbidden course of following the abolitionists and treating the ideas on their merits.30
In 1828 Calhoun drafted the South Carolina Exposition and Protest. The Exposition was a lengthy constitutional and economic criticism of the federal government’s tariff policy as well as a vigorous defense of nullification as a legitimate state response. The Protest, a brief and separate document condemning the federal government’s tariff policy as unconstitutional, was approved by the South Carolina legislature. If relief was not forthcoming, these documents suggested, the state could well resort to nullification.
Calhoun’s relationship with Andrew Jackson had been deteriorating throughout the President’s first term, and indeed Calhoun had resigned as vice president by the end of 1832. He returned to South Carolina, where he filled an open U.S. Senate seat and opposed President Jackson in the open. The Tariff of 1832 had brought no real relief from the protective tariff policy that numerous southern legislatures considered constitutionally dubious. South Carolina elected delegates to a special convention that voted to nullify the tariffs of 1828 and 1832, declaring that the state’s noncompliance would go into effect on February 1, 1833. Jackson responded with his famous Proclamation of December 10, 1832, that condemned nullification and warned South Carolina to desist from its course.
South Carolina did no such thing. To the contrary, its legislature protested what it considered the intimidating words and actions of President Jackson: “Resolved, That the principles, doctrines and purposes, contained in the said proclamation are inconsistent with any just idea of a limited government, and subversive of the rights of the states and liberties of the people.” To the President’s implicit threat to use force against his own people, South Carolina replied that “while this legislature has witnessed with sorrow such a relaxation of the spirit of our institutions, that a President of the United States dare venture upon this high handed measure, it regards with indignation the menaces which are directed against it, and the concentration of a standing army on our borders—that the state will repel force by force, and relying upon the blessings of God, will maintain its liberty at all hazards.”31
In early 1833, as the fateful date approached, Jackson secured passage by Congress of the Force Bill, which authorized the use of force against South Carolina should it not collect the tariff in compliance with federal law. An ultimate collision was averted when a compromise was reached whereby the tariff would be gradually lowered over the next ten years. For good measure, South Carolina nullified the Force Bill.
The usual moral of the story is that no one state can successfully stand up to the federal government. I draw a different moral. South Carolina stared down the federal government and won for the South a program of tariff relief it might otherwise not have received. The compromise reached between the federal government and South Carolina demonstrates the value of nullification, not its fruitlessness.
The merits of South Carolina’s constitutional argument are not our concern here. It could have been submitted to the arbitrament of the states as a whole, and the controversy decided there. There was no reason for a U.S. president to threaten the use of military force against his own people—the kind of thing Americans are taught to condemn when carried out by foreign regimes but to excuse and even celebrate as if it were something categorically different when done by their own.
So far we have seen nullification and the Principles of ’98 employed on behalf of numerous causes, among them freedom of speech, free trade, state control of the militia, and opposition to conscription. We have also seen that the major architects of the idea were not supporters of slavery. The average American knows little to none of this. Should he hear the idea of nullification, he would likely suspect—borrowing from the comic-book version of American history he was doubtless forced to endure in junior high school—that it must have been nothing but a sinister means of defending slavery. Isn’t that, after all, the only reason someone might support political decentralization?
This is one reason it is important to remember how the northern states employed the Principles of ’98 in opposition to the return of runaway slaves. Now it is true that the Constitution (Article IV, Section 2) contains a fugitive-slave clause (made irrelevant when the Thirteenth Amendment was adopted): “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” Thus it was argued that the northern states were misusing the Principles of ’98, since the fugitive slave laws to which they objected were in fact authorized by the Constitution. On the other hand, the clause does not mean that absolutely any measures designed for the purpose of capturing runaway slaves would be constitutionally acceptable, and the Fugitive Slave Act of 1850 was in fact open to constitutional objection.32 The lack of a proper jury trial for accused fugitives seemed to some states to conflict with their obligation to protect their citizens against kidnapping. Bystanders could be forced to assist in the capture of a fugitive, and stiff penalties were imposed for anyone who harbored or tried to obstruct the capture of a fugitive. On a more technical note, the Constitution requires judicial officers to be paid by fixed salaries, but the fugitive-slave commissioners were paid by fees. And not just any fees: such commissioners received ten dollars if they returned an accused fugitive to slavery, and only five if they set him free!
In northern states, nullification took the form of doing everything officials could to make enforcement of the act difficult if not impossible. State officials who lent their support to a fugitive-slave claimant were penalized and even impeached. Federal officials were not allowed to use local jails to house accused fugitives. Slaveholders coming to claim their slaves were required to go before federal fugitive-slave tribunals rather than simply snatching their slaves and absconding with them.
In a speech delivered in 1909, historian Robert Wild challenged his audience at the Wisconsin Bar Association to consider that those states (including Wisconsin itself) that chose to interfere with or resist the enforcement of the Fugitive Slave Act had in fact been nullifiers:
There are gentlemen still in our own midst, some within the sound of my voice, who lived through and even participated in that great humanitarian movement, and I stand in their presence with reverence upon my lips and affection in my heart. But, I ask, speaking calmly from the standpoint of my unemotional text, did their acts differ in principle from those of the South Carolinians, save only in degree? Were they not also, purely and simply, nullifiers, acting, to be sure, in the spirit of a broad and sweet humanity, yet nullifiers none the less?33
One of the most vivid examples of a state’s determination not to enforce a measure it considered constitutionally dubious involved Wisconsin, and a man named Joshua Glover. The story began in March 1854. Glover had been taken into custody by a federal marshal seeking to enforce the Fugitive Slave Act of 1850, on the grounds that Glover was himself a runaway slave. Sherman Booth, a local anti-slavery newspaper editor, frantically distributed handbills urging people to convene in the courthouse square to ensure the accused fugitive was not removed without a jury trial. With time running short, Booth ultimately abandoned the handbills and simply rode his horse throughout Milwaukee’s business district, stopping at street corners to shout, “A man’s liberty is at stake!”34
Several speakers addressed the mob that gathered before the jail in which Glover was being held. It was Booth in particular who roused the crowd into action. After he spoke, they forced their way into the jail and released Joshua Glover.
Not unexpectedly, Booth was arrested and brought before a federal district court. When he applied for a writ of habeas corpus, a judge of the Wisconsin State Supreme Court ordered him released. The state supreme court declared the Fugitive Slave Act to be unconstitutional and therefore void.
Before long Booth was arrested again, by the same federal marshal. This time he was found guilty of violating the Fugitive Slave Act, and imprisoned and fined. But once again he was released on order of the state supreme court.
Because the state supreme court was completely uncooperative in submitting a proper record of the case to the U.S. Supreme Court, no further action was taken until March 1857, when the U.S. Attorney was at last able to get a copy of that record. Finally, in December 1858, the U.S. Supreme Court ordered Booth turned over to federal custody. The state supreme court refused to comply.
In 1859, the Wisconsin legislature, heartily approving of its state supreme court’s conduct, adopted a resolution in support of the Principles of ’98. The U.S. Supreme Court’s action, the legislature declared, was “without authority, void, and of no force.” Its full statement, as anyone can see, was deeply indebted to the Kentucky Resolutions of 1798:
Resolved, That the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Resolved, that the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several States which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.35
The Virginia and Kentucky Resolutions and the Principles of ’98 had in fact been appealed to all along in the Glover/Booth controversy, and not just in the Wisconsin legislature’s 1859 statement. Several weeks after the capture of Glover, a handbill announced the establishment of the “Anti-Slave-Catchers’ Mass Convention,” which appealed to the defense of state sovereignty against federal usurpations:
All the People of this State, who are opposed to being made SLAVES or SLAVE-CATCHERS, and to having the Free Soil of Wisconsin made the hunting-ground for Human Kidnappers, and all who are willing to unite in a STATE LEAGUE, to defend our State Sovereignty, our State Courts, and our State and National Constitutions, against the flagrant usurpations of U.S. Judges, Commissioners, and Marshals, and their Attorneys; and to maintain inviolate those great Constitutional Safeguards of Freedom—the WRIT OF HABEAS CORPUS and the RIGHT OF TRIAL BY JURY—as old and sacred as Constitutional Liberty itself; and all who are willing to sustain the cause of those who are prosecuted, and to be prosecuted in Wisconsin, by the agents and executors of the Kidnapping Act of 1850, for the alleged crime of rescuing a human being from the hands of kidnappers, and restoring him to himself and to Freedom, are invited to meet at YOUNGS’ HALL, IN THIS CITY, THURSDAY, APRIL 13TH, at 11 o’clock A.M., to counsel together, and take such action as the exigencies of the times, and the cause of imperiled Liberty demand.36
Byron Paine, a knowledgeable abolitionist respected for his oratory by friend and foe alike, argued before the Wisconsin Supreme Court that “the great point of the controversy upon this subject is whether the Federal Government is the exclusive judge of its own powers, or whether the States have not also the right to judge upon that matter.” He declared that the federal government, having been created by the states to perform certain limited functions, could not reach beyond its expressly delegated powers; this principle, he said, was “not denied in theory by any one.” He referred again and again to the Virginia and Kentucky Resolutions and to Madison’s Report of 1800. Abram Smith and Edward Whiton, two justices of the Wisconsin Supreme Court, cited Jefferson, Madison, and the right of state interposition. Justice Smith contended that “the real danger to the union” came not from nullification, but “in acquiescence in measures which violate the Constitution.”37
This history may be all very impressive, but everything changed after 1865, right? Weren’t the states forced into a subordinate position? Of course not. The nature of sovereignty will not permit such a thing. In 1869, a year after the Fourteenth Amendment was adopted, even the Supreme Court reaffirmed the “expressly delegated” principle in the case of Lane County v. Oregon:
Both the states and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government [i.e., the government under the Articles of Confederation], which acted with powers, greatly restricted, only upon the states. But in many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the national government are reserved. The general condition was well stated by Mr. Madison in the Federalist, thus: “The Federal and State governments are in fact different agents and trustees of the people, constituted with different powers and designated for different purposes.”38
Still, it is very common in current discussions of nullification to hear critics say the Civil War “settled” the issue. Now for one thing, the Civil War had nothing to do with nullification, though the southern secession was indeed based upon the (correct) compact theory of the Union, to be discussed in the next chapter. In fact, many supporters of nullification, including the now-reviled Calhoun, supported nullification precisely in order to preserve the Union against secessionists who would sever it. But even if nullification had been at stake, what moral significance can we attach to the statement that war “settled” the issue? If I say the sky is blue and you say it is brown and green, and then you throw a brick at my head, does that make the sky brown and green? Would a parent tell his bloodied son that his unfortunate fate at the hands of the school bully proved the poor kid must have been wrong? Would we not consider it unspeakably grotesque and morally outrageous to declare that the U.S. Army “settled” the issue of the Plains Indians?39
The merits of the constitutional arguments advanced by the states we have studied in this chapter, although interesting in themselves, are not what concern us. What is important is the history itself, the brute fact that the states once did resist the federal government when they believed it had gone beyond its legitimate powers. This is not a newfangled idea that emerged in the twenty-first century out of opposition to George W. Bush or Barack Obama. It is a regular feature of American history, employed for honorable purposes from the earliest days of the republic.